Crystal Geyser Gushes $5 Million in Hazardous Waste Fines

Written by Dawn DeVroom, IDR Environmental Services

The recent federal case against the company that bottles Crystal Geyser Natural Alpine Spring Water proves that the improper handling of hazardous waste can be costly.

Recently, CG Roxane pled guilty in U.S. District Court to unlawful storage of hazardous waste and unlawful transportation of hazardous material. The plea agreement to the two counts came with a $5 million criminal fine.

The charges stemmed from allegations that over the last 15 years, CG Roxane has dumped wastewater contaminated with arsenic into a man-made pond at the company’s Olancha, California, facility. Samples taken by the Lahontan Regional Water Quality Control Board revealed arsenic levels were eight times higher than legally allowed.

This case underscores the importance of proper identification, transportation and disposal of hazardous waste. It also stresses the consequences of not working with the right certified company to ensure your business is meeting all state and federal regulations. Not doing so can result in substantial fines and negative publicity that can have a disastrous effect on your business.

Improper Waste Disposal Can Be Costly

hazardous wasteFailure to manage hazardous waste streams according to state and federal guidelines can bring unwanted consequences for both the environment and your company.

As CG Roxane discovered, costly criminal fines often accompany cases in which companies are found guilty of improper hazardous waste management. Two other companies may find themselves in trouble from this case as well. CG Roxane hired United Pumping Services Inc. and United Storm Water Inc. to transport and treat the wastewater. Both could face fines of up to $8 million if found guilty for their role in the case.

Other multimillion-dollar companies have faced similar consequences. Companies like FedEx, Rite Aid and Walmart have been fined millions of dollars over the past few years for improper waste management practices. Walmart, in particular, agreed to pay more than $81 million after pleading guilty in 2013 to six counts of violating the Clean Water Act.

In addition to fines, improper waste disposal can be a nightmare for a company’s public image, and worse, become a risk to public safety. Spills, fires, explosions and exposure to toxic chemicals can stem from the mishandling of hazardous waste.

How To Ensure Proper Waste Management

It is critical for hazardous waste generators to ensure compliance with regulations by providing ongoing training opportunities for employees and by working with an experienced hazardous waste disposal company.

The onus falls on you to ensure any hazardous waste you generate is disposed of properly. That responsibility does not end once your waste is removed from company property. Under the Resource and Recovery Act of 1976 (RCRA), you are legally and financially responsible for the appropriate treatment and proper disposal of that waste … from cradle to grave.

Choosing the wrong vendor can prove costly, too.

So, how do you properly vet a company for the best business practices and avoid the nightmare scenarios described above?

1. Begin with a thorough background check of a vendor.

In addition to checking state and federal licenses, set up an interview with the vendor. Ask questions such as:

  • Do you have a Dun & Bradstreet report or a bank letter of credit?
  • Do you meet minimum insurance requirements and have coverage for accidents?
  • Do you have adequate personnel that are properly trained and certified?
  • Can you provide a statement of qualifications (SOQ)?
  • How do you deal with unknown chemicals?
  • Are you legally permitted for the transportation, storage, treatment and disposal of hazardous waste materials?
  • Can you provide a list of references on past related projects?

More ideas for questions to ask a vendor can be found in our article, What Manufacturers Must Know About Hazardous Waste Disposal.

2. Confirm the experience of any vendor being considered.

A hazardous waste generalist, for example, is used to working in different environments and has a broad base of experience working with different toxic chemicals.

Check to make sure the vendor includes these services:

  • Identification of waste streams by profiling and testing them
  • Development of site-specific plans, including training and emergency preparation
  • Transportation to recycling and disposal sites
  • Manifest preparation and any other paperwork that must be completed

3. Look for a certified hazardous waste disposal company that is consultative.

In other words, look for a company that offers a hazardous waste walk-through program.

Areas of focus should include:

  • Waste manifesting
  • Hazardous waste procedures
  • Waste storage evaluation
  • Emergency readiness
  • Hazardous waste evaluation
  • Employee training procedures

A waste walk-through program will help you stay atop any regulatory changes at the local, state and federal levels.

Better Safe Than Sorry

The improper handling of hazardous waste can have devastating effects on the environment, community and your business.

Many companies that do not take the proper precautions to ensure the waste they generate is properly disposed of find themselves tangled up in a legal mess for years. At the end of that mess is rarely a positive outcome for the company.

Working with a certified hazardous waste disposal service will help you avoid costly fines and a tarnished public image, as well as allow you to be assured that the hazardous waste your company generates is being transported and disposed of safely and legally.


About the Author

Dawn DeVroom is the CFO at IDR Environmental Services based in California. The company specializes in hazardous waste disposal.

Water Wells Remain at Risk in Ontario

Written by Theresa McClenaghan, CELA Counsel and Executive Director and Richard Lindgren, CELA Counsel

The December 2019 annual report by the Auditor General of Ontario has focused public and political attention on the need for effective provincial action to reduce greenhouse gas emissions.

However, in another key passage, the report  also raises red flags about drinking water safety in many communities and First Nations across Ontario that are not served by municipal drinking water systems.

For example, the Auditor General concludes that “significant risks remain for Indigenous communities and areas outside of Conservation Authority boundaries, as well as private wells, which in total serve about 18% of Ontario’s population.”

In making this finding, the Auditor General notes that Ontario’s Clean Water Act (CWA)  has helped protect water sources that supply municipal drinking water systems.

Unfortunately, this legislation does not yet apply to non-municipal systems such as private residential wells. Therefore, the CWA does not currently require mandatory protection of groundwater used by well clusters in hamlets, villages and towns, even though such aquifers may supply drinking water for hundreds or even thousands of residents.

It is clear that this risk-laden situation has been allowed to continue under successive provincial governments in Ontario.

However, Premier Ford and his cabinet colleagues now have an opportunity to end decades of inaction by extending the CWA to non-municipal drinking water systems, and substantially improving Ontario’s Regulation 903 (Wells) .

Notably, the Auditor General’s latest report is not the first time that her office has expressed serious concern about threats to the drinking water consumed by some Ontarians.

In 2014, the Auditor General reported  that “over a third of the water samples from private wells tested positive for bacteria including E. coli. If private wells were held to the same safety standard used for public drinking water systems, water from these wells that tested positive for bacteria would be considered unsafe to drink.”

The Auditor General therefore recommended that the Environment Ministry “should consider the feasibility of requiring source protection plans to identify and address threats to sources of water that supply private wells and intakes.” Several years later, this important recommendation still has not been acted upon by the Ontario government.

Similar findings were made by the former Environmental Commissioner of Ontario (ECO) in her final environmental protection report to the Legislative Assembly in 2018.

This ECO report  confirms that the source protection framework under the Clean Water Act “has not been applied to most of northern Ontario, most First Nation communities or to private wells or other non-municipal drinking water sources.  These gaps leave some Ontarians vulnerable to unsafe drinking water.”

Over the years, the ECO  has also been critical of the ongoing inadequacy of Regulation 903, which establishes requirements for water well construction, repair and abandonment across the province.

In addition, the ECO  has described Regulation 903 as “severely flawed,” and rebuked the Ontario government “for neglecting its obligations to those whose drinking water comes from the most vulnerable of sources: small private wells.”

To date, however, only minor changes to Regulation 903 have been passed or proposed. Inexplicably, expert recommendations offered in 2005 by the Ontario Drinking Water Advisory Council on how to strengthen disinfection requirements under the regulation have not been fully implemented by the provincial government.

In these circumstances, further reforms are clearly needed to protect the health of all Ontarians, not just those who are served by municipal drinking water systems.

To expedite such reforms, CELA has recently filed a formal Application for Review of the CWA and its implementing regulation, pursuant to Ontario’s Environmental Bill of Rights (EBR). This EBR Application calls upon the provincial government to revise the CWA in order to extend source water protection requirements to various types of non-municipal drinking water systems that are not currently covered by the Act.

The Environment Ministry must now decide by mid-February 2020 whether it will undertake the review requested by CELA.

However, time is of the essence. As noted by Mr. Justice O’Connor in the Report of the Walkerton Inquiry , “there is no justification for permitting lower public health standards for some residents of Ontario than those enjoyed by others.

This article has been republished with the permission of the authors.  It was originally published in the CELA website.


About the Authors

Theresa McClenaghan was appointed as Executive Director of the Canadian Environmental Law Association (CELA) in November 2007.  Theresa frequently serves on government and NGO advisory panels on water protection.  She has authored various journal papers and book chapters, and is co-author of the three-volume annotated legal publication Ontario Water Law.  She holds an LL.B. from Western University (1984) and an LL.M. in constitutional law from Osgoode Law School at York (1999), with a major paper focused on section 35 of the Charter and indigenous environmental governance.  Theresa also earned a diploma in Environmental Health Science from McMaster University (1999).

Richard Lindgren is a staff lawyer at the Canadian Environmental Law Association.  Since joining CELA in 1986, he has represented individuals, public interest groups and First Nations before tribunals and in the courts, including the Supreme Court of Canada. He was co-counsel for Walkerton residents at the Walkerton Inquiry, and was a member of the Environment Minister’s Task Force on the Environmental Bill of Rights, the Attorney General’s Advisory Committee on Class Action Reform, and the Environment Minister’s Advisory Panel on Environmental Assessment.  He edits the Canadian Environmental Law Reports, and has taught environmental law at Queen’s University Faculty of Law and Trent University School of the Environment.

Excess Soil Management Guideline in Ontario – Berkley Canada’s White Paper

The Ontario Ministry of the Environment, Conservation and Parks (MECP) has finalized the Excess Soils Management Framework, bringing comprehensive change to how excess soils are managed in Ontario. The Environmental Team at Berkley Canada (a Berkley Company) recently released a White Paper which helps summarize key parts of the Framework, discusses emerging liabilities for various stakeholders, and highlights potential mitigation tools.

The MECP’s Framework appears to have two strategic goals”

  1. Protect human health and the environment from inappropriate use of excess soils; and
  2. Encourage the beneficial reuse of excess soils.

The White Paper provides readers with a summary of the Framework (from an insurer’s perspective) along with easy access to the relevant supporting documents and helps readers identify new risks and potential risk transfer solutions associated with the Framework.

The White Paper would be of interest to Environmental Consultants, Remediation and Construction Contractors, Real Estate Developers, and Land Owners.

 

Poison and Preemption: U.S. Supreme Court Considers Common Law Claims and CERCLA Remedies

Written by Gary Shockey, Baker Donaldson

The Anaconda Smelter served southwestern Montana’s mining industry for almost one hundred years before its closure in 1980. Today, the 585-foot “Big Stack” remains as one of the largest free-standing masonry structures in the world and the centerpiece of the Anaconda Smoke Stack State Park. The smelter also has a darker legacy, comprising part of a federal Superfund site of approximately 300 square miles, including soils and groundwater contaminated with arsenic, copper, lead, and other metals from historic mining and smelting operations. Despite more than a quarter century of investigation and cleanup, much of the site remains in remediation overseen by EPA. In a case currently pending before the U.S. Supreme Court, site owner Atlantic Richfield Company (ARCO) has challenged the jurisdiction of Montana state courts to order additional “remediation damages” in a suit by private landowners within the Anaconda Site.

The case now pending before the Court began as one for nuisance, trespass, and strict liability by numerous landowners in and around Opportunity, Montana. Those landowners sought damages for various injuries to their property allegedly caused by the smelter contamination, including “restoration damages.” Under Montana law, those damages would compensate the landowners for restoring their property to its pre-contamination state, with the costs placed into a trust upon which they could draw to carry out the restoration work themselves. According to the landowners’ experts, that restoration should be based on a lower cleanup level for arsenic in soils – resulting in removal and re-disposal of substantially more “dirty dirt” – and a lengthy, underground permeable barrier wall for treatment of groundwater. Both of these proposed actions were considered and rejected by EPA when it selected the CERCLA remedy for the site years earlier. ARCO moved for summary judgment on the restoration damages claim, arguing that the state court lacked jurisdiction to order remedies that went beyond those approved by EPA, at least while the EPA-approved remediation continued. The state court disagreed and ARCO sought a writ of supervisory control from the Montana Supreme Court.

In its 2017 decision, Atlantic Richfield Co. v. Montana Second Judicial District Court, 408 P.3d 515 (Mont. 2017), the Montana Supreme Court rejected ARCO’s preemption arguments. The court found that the potential restoration damages did not constitute a challenge to EPA’s remedy, which would be prohibited by the timing of review provisions of CERCLA § 113(h). The court reasoned that nothing in the landowners’ preferred remedy interfered with ongoing or planned work by EPA and thus fell within CERCLA’s state law savings clauses, CERCLA §§ 114(a), 302(d). In that court’s view, “The Property Owners are simply asking to be allowed to present their own plan to restore their own private property to a jury of twelve Montanans who will then assess the merits of that plan.” Id. at 521. Notwithstanding the contrary views of the U.S. Department of Justice and one dissenting justice, the Montana court did not see that potential judgment by 12 Montanans as a challenge to EPA’s selected remedy. The Montana court also rejected an argument that the landowners were themselves potentially responsible parties (PRPs), whose “inconsistent response action” would require prior EPA approval under CERCLA § 122(e)(6). Rather, the court found that CERCLA’s six-year statute of limitations would bar any efforts to brand them PRPs. Finally, the court concluded that the restoration damages remedy was not otherwise preempted by CERCLA under the doctrine of federal conflict preemption.

The United States Supreme Court granted certiorari in June 2019 to review the Montana court’s decision. Joined by a plethora of amici on both sides, Petitioner ARCO and Respondent landowners presented their arguments to the Court, along with those of the Solicitor General. In oral arguments held on December 3, 2019, the Court’s liberal justices seemed concerned that ARCO’s preemption theories were hard to reconcile with CERCLA’s state law savings clauses. The parties disagreed about whether CERCLA remedies were “a floor” or both “a floor and a ceiling.” All of the justices seemed concerned over the “restoration damages” procedures requiring that a judgment be deposited into a trust account and doled out to landowners for restoration work in the future. The Solicitor General attempted to address the Court’s concerns by arguing that the Respondents remained free to pursue damages and tort remedies that did not question EPA’s selected remedy, while states could set more stringent cleanup levels in accordance with the ARAR process of CERCLA § 121. Several commentators noted after the oral argument that the Court seemed to be searching for a narrow rationale to overturn a troublesome decision without eliminating the states’ role in cleanups and vindicating the rights of their citizens at common law. The Court’s decision is expected before the end of the term in June 2020.

This article has been republished with the permission of the author.  It was first published on the Baker Donaldson website.


About the Author

Gary has been certified as a Civil Trial Specialist by the National Board of Trial Advocacy. His experience includes environmental, personal injury, class action, antitrust, health care and construction cases. In addition, he has represented businesses and individuals in white collar criminal investigations and prosecutions and conducted numerous internal investigations.

His extensive pro bono practice has included representation of inmates on Tennessee’s death row, veterans, battered women, children and immigrants. He has served in various leadership positions in the Tennessee Bar Association, including on its Board of Governors and as chair of its Litigation and Environmental Law Sections, and as a character and fitness investigator for the Tennessee Board of Law Examiners and a District Hearing Committee officer for the Board of Professional Responsibility. A frequent speaker and author, Gary has published more than 35 articles on evidence, civil and criminal procedure, legal history and related topics.

How hands-on scenarios can enhance radiological survey training

Written by Steven Pike, Argon Electronics

Radiological surveying is an integral task in maintaining safety wherever quantities of ionizing radiation are in use, or where they are suspected to be present.

Whether it is in the context of a military operation, emergency first response or an industrial setting, radiation safety personnel need to be equipped with the right tools to ensure they can accurately assess their environment and determine the best course of action.

Most radiological survey instruments have been designed to be easy to deploy, but it is important to be competent not just in the hands-on operation of the equipment but in being able to interpret the readings that are obtained and decide upon the appropriate recommendations to ensure safety is not compromised.

Once it has been established that the radiation hazard originates from a sealed source – meaning that there is no contamination risk – the principles of time, distance and shielding are vital.

Whenever possible, trainees should be provided with the opportunity to explore and test these principles in hands-on training scenarios that replicate real-life situations.

By adding the use of simulator detector equipment, there is also an opportunity for trainees to fully experience the characteristics, the behaviour and the risks of ionizing radiation – and to do so in a learning environment that is safe, immersive and highly realistic.

The flexible and high-fidelity nature of well-designed simulator detectors makes it possible for trainers to create a virtually unlimited range of realistic training scenarios for their students.

In this blog post we explore how the key principles of radiation safety can be put to the test in a range of hands-on scenarios.

1. Time

Radiation safety hinges on the understanding of the correlation between dose (or exposure) and dose rate (or the radiation present in the atmosphere) is directly related to time.

When the time (or the duration of exposure) is reduced by half, for example, the dose received will also be halved.

Once the trainee has been able to assess the dose rate present in the atmosphere, this information can be used to calculate their incident stay time in the hot zone (calculated as Exposure Limit divided by Dose Rate), which will allow them to carry out their activities as quickly and as safely as possible.

2. Distance

Distance – or how close an individual is to a radiological point source – is a key factor in enabling trainees to control exposure.

When the distance between the individual and the point source is doubled, this will reduce personal exposure by 75%, according to the rules of the Inverse Square Law.

How close it will be possible to get to a source of radiation without high exposure will depend on the energy of the radiation and the activity of the source.

Distance is a prime concern with gamma rays as they travel at the speed of light. Alpha particles, meanwhile, travel just a few inches in air, while beta particles can travel several feet – meaning that once an operator backs out of the affected area (and assuming that the material is not being spread by wind, rain or other forces) the trainee is no longer at risk.

3. Shielding

Radiation shielding is another vital skill that be put to the test during radiation training exercises.

Shielding is based on the principle of attenuation – or the extent to which a barrier can be used to block or bounce a radio wave.

Which radioactive shielding material will be best suited to the task, will depend on the penetration of the dose.

Alpha particles, for example, can be stopped by shielding that is as thin as a sheet of paper – while beta radiation requires something much heavier, such as an inch of wood or a thick piece of aluminum.

The highly penetrating nature of gamma radiation requires far denser shielding – ideally several inches of concrete or lead.

4. Establishing hazard perimeters

The readings obtained from portable survey meters provide essential information to enable personnel to establish operational control zones or hazard perimeters.

The ability to control (and operate within) a hazard perimeter will rely on a trainee’s proficiency in the following skills:

  • Understanding the physical considerations of the scene – for example, being able to assess the nature and severity of the radiation incident, identifying the presence of other co-existing threats, and protecting critical infrastructure.
  • Using existing topography (roads, structures etc) to enforce the perimeter and to aid in the protection and gathering of forensic evidence

 

Portable radiological survey meters provide radiation protection officers, first responders and CBRNe teams with the vital information they need to detect and measure external ionizing radiation fields.

Understanding the principles of time, distance and shielding, and having the opportunity to put this knowledge to the test in realistic training scenarios, will be vital in ensuring that radiation safety personnel are able to carry out their duties safely, efficiently and effectively.


About the Author

Steven Pike is the Founder and Managing Director of Argon Electronics, a leader in the development and manufacture of Chemical, Biological, Radiological and Nuclear (CBRN) and hazardous material (HazMat) detector simulators. He is interested in liaising with CBRN professionals and detector manufacturers to develop training simulators as well as CBRN trainers and exercise planners to enhance their capability and improve the quality of CBRN and Hazmat training.

 

Forecast for U.S. Federal and International Chemical Regulatory Policy 2020

Bergeson & Campbell, P.C. (B&C®) and its consulting affiliate, The Acta Group (Acta®), recently released their Forecast for U.S. Federal and International Chemical Regulatory Policy 2020. In this detailed and comprehensive document, the legal, scientific, and regulatory professionals of B&C and Acta distill key trends in U.S. and global chemical law and policy, and provide our best informed judgment as to the shape of key developments we are likely to see in the New Year.

The forecast was prepared by the global team of professionals from the two firms. The core business of the firms are the law, science, regulation, and policy of chemicals of all varieties — industrial, agricultural, intermediate, specialty, and biocidal, whether manufactured at the bulk or nano scale, or using conventional or innovative technologies, including biotechnology, synthetic biology, or biobased.

The team that put together the forecast was comprised of scientists (seven Ph.D.s), including toxicologists, chemists, exposure experts, and geneticists; regulatory and policy experts; and lawyers is deeply versed in chemical law, science, and policy and our unique business platform seamlessly leverages and ensures the integration of law and science to achieve success at every level, and in all parts of the globe.

The table of contents for the forecast can be found below.

TABLE OF CONTENTS

I. UNITED STATES: CHEMICAL FORECAST

  1. INTRODUCTION
  2. TSCA
  3. FIFRA
  4. U.S. NANOTECHNOLOGY
  5. BIOTECHNOLOGY
  6. BRAG
  7. HAZARDOUS MATERIALS TRANSPORTATION
  8. TRADE
  9. PROP 65
  10. INGREDIENT DISCLOSURE
  11. FDA FOOD AND COSMETICS REGULATION
  12. OSHA, WHMIS, AND GHS

II. KEY GLOBAL CHEMICAL MANAGEMENT PREDICTIONS

  1. OECD
  2. SAICM
  3. EU
  4. UK/BREXIT
  5. BIOCIDES
  6. ASIA
  7. MIDDLE EAST
  8. UN GHS

APPENDIX A: B&C SPEECHES AND WRITINGS

APPENDIX B: B&C WEBINARS AND PODCASTS AVAILABLE ON DEMAND

APPENDIX C: GLOSSARY

 

In the Sale of Property, Responsibility for Removal and Remediation of Underground Storage Tanks needs to be clear

Written by Stan Berger, Fogler Rubinoff LLP

On January 9, 2020, the British Columbia Supreme Court in Walton v. Warren 2020 BCSC 19 found in favour of the Purchaser when an undiscovered underground storage tank required removal and site remediation following closing. This ruling was given despite the Purchaser having signed off on an inspection report prior to closing. The purchase and sale agreement provided that the Seller had to ensure that any underground storage tank (UST) located on the property be removed and the surrounding soil remediated. The Seller was responsible for all costs. The Seller had to provide written confirmation before the Completion Date from the tank removal contractor and relevant provincial and local authorities that the remediation complied with provincial or local government laws. The Purchaser had to obtain and approve an inspection report 6 weeks before the completion date. The report recommended that a specialist company survey and sweep the property to determine the presence of buried oil tanks. The Purchaser’s realtor arranged for a scan of the property free of charge. This was followed by a scanning company’s report stating there was no evidence of any UST. The contract closed on schedule and almost 3 years later the basement of the property flooded. During a necessary drain replacement a UST was discovered requiring its removal and remediation at a cost of $42,000. The Purchaser sued the sellers.

The Judge found that the existence of the UST was unknown to the Seller at the time of the sale. The Seller argued that their obligation with respect to responsibility for any underground storage tank ended upon the closing. The Purchaser completed the purchase being satisfied with the condition of the property. The judge disagreed finding in the Purchaser’s favour.

“[62] There is no language in the Addendum which could be interpreted as limiting the defendants’ obligations only to those USTs that were discovered prior to the Completion Date or to those USTs of which they were aware. [63] The Addendum does not include any conditional language. For example, it does not say that the defendants are to remove and remediate “any oil tank that is discovered prior to the Completion Date” or “any oil tank that they are aware of prior to the Completion Date”.

Moreover the survival clause in the agreement contained no exceptions.

The lesson here is that courts are disinclined to infer any limit on the responsibility of a party when the language in the contract isn’t clear.

This publication is intended for general information purposes only and should not be relied upon as legal advice.


About the Author

Mr. Berger has practiced regulatory law for 37 years. He represents nuclear operators and suppliers, waste management operators, renewable energy operators, receivers-in-bankruptcy, municipalities and First Nations. He was an Assistant Crown Attorney in Toronto for 8 years, Senior counsel and Deputy Director for Legal Services/Prosecutions at the Ministry of the Environment for 9 years and Assistant General Counsel at Ontario Power Generation Inc for 14 years.
He is the author of a quarterly loose-leaf service published by Thomson Reuters entitled the Prosecution and Defence of Environmental Offences and the editor of an annual review of environmental law.
Mr. Berger was the President of the International Nuclear Law Association (2008-2009) and the founder, and President of the Canadian Nuclear Law Organization.

Are your Waste Transport Drivers Properly Trained under Ontario’s EPA?

Companies that hold an Environmental Compliance Approval (Waste Management System) for the transport of municipal waste, liquid industrial waste, or hazardous waste or are registered under the Environmental Activity Sector Register (EASR) for waste transport are required to have their drivers undergo specific environmental training.

Ontario’s General – Waste Regulation (Ontario Regulation 347) under the Ontario Environmental Protection Act ensures that wastes are effectively managed from the point of their generation to where they are ultimately processed or disposed of.  To provide this necessary control, the regulation includes definitions for different waste types and detailed requirements for a range of waste management activities.

The Ontario Ministry of the Environment, Conservation, and Parks (MOECP) Guideline for Training Requirements for Drivers of Waste Transportation Vehicles (Guideline C-12, PIBS 7914e01) provides information on environmental driver training related to the transport municipal waste, liquid industrial waste or hazardous waste.

The Guidelines outline the major areas that drivers of vehicles used for the transportation of municipal waste, liquid industrial waste or hazardous waste need to be trained on which includes:

  • The operation of the vehicle and waste management equipment,
  • Relevant waste management legislation, regulations and guidelines,
  • Major environmental concerns for the waste to be handled,
  • Occupational health and safety concerns for the waste to be handled, and
  • Emergency management procedures.

For more information on driver training requirements, contact John Nicholson, the editor of Hazmat Management Magazine.

Alizadeh v Ontario: Directors Face Uphill Battle to Rebut a Presumption of Management and Control

Written by Donna Shier, Partner and Certified Environmental Law Specialist by the Law Society of Ontario, with the assistance of Lauren Wortsman, Student-at-Law, Willms & Shier Environmental Lawyers LLP

Corporate directors and officers are presumed to have management and control of a corporation. As such, directors and officers may be named in Orders issued by the Ontario Ministry of Environment, Conservation and Parks (“MECP”) to address environmental contamination. The Ontario Environmental Protection Act, s. 18 provides the MECP with authority to issue an Order to any person who “owns or owned or who has or had management or control of an undertaking or property”.

The Environmental Review Tribunal (“ERT”) recently affirmed that the evidentiary burden on a corporate director to rebut a presumption of management and control of a corporation is extremely high. In Alizadeh v Ontario (Ministry of Environment, Conservation and Parks), the ERT held a former director personally liable for an Order after the director led insufficient evidence to rebut the presumption. Further, the director’s financial inability to comply with the Order did not warrant removal of the director’s name from the Order.

Facts
In Alizadeh, the company purchased a wood waste landfill site. In 2013, the MECP issued an Order requiring the company to conduct work on the landfill and leachate collection system. The company did not comply with the Order, and the company and its former director were prosecuted. The company was convicted and fined. The charges against the former director were withdrawn.

After the company was convicted, leachate from the landfill continued to discharge to a creek off site. In March 2018, the MECP issued another Order against the company. This Order also named the former director personally. The Order required the company and the former director to conduct work on the leachate collection system to inhibit the migration of leachate off site.

The former director argued that the Order improperly named him for two reasons:

  1. he was never a person in “management or control” of the company, and
  2. he had no financial ability to comply with the Order.

Presumption of Management and Control
The ERT confirmed that corporate officers and directors are presumed to have management and control of the company.

The ERT affirmed holdings from previous decisions:

  • In Rocha v Ontario (Environment and Climate Change), the ERT held that “control” includes both the power to make things happen and the power to prevent them from happening
  • In Currie v Ontario (Ministry of the Environment), the ERT held that a director who acts as a “point person” with respect to the MECP and has knowledge of the environmental issues at a site has management and control
  • In Caltex Petroleum Inc v Ontario (Ministry of Environment and Energy), the ERT held that the onus is on the officer or director to present convincing evidence to rebut the presumption of management and control.

In Alizadeh, the ERT stated that management and control is not limited to formal legal control by officers and directors. It also includes “de facto control”.  However, the ERT does not define “de facto control”.

The ERT said “Where those with formal legal control of a corporation deny their involvement, the Tribunal puts the onus on them to make a ‘convincing case’.”

The ERT concluded the former director had not led sufficient evidence to rebut the presumption of control. This was despite the fact that the former director:

  • was not a director at the time of the Order,
  • had no access to any corporate documents that might prove his position,
  • had no access to the site to comply with the Order, and
  • was prohibited by court-ordered bail conditions in an unrelated matter from contacting the other director to obtain access to the site.

The ERT cited the following factors to conclude that the former director did have management and control:

  • publically-available corporate filings indicate that the former director was the only
    director for much of the relevant time period,
  • the former director negotiated and signed the Agreement of Purchase and Sale for the
    property on behalf of the company,
  • the former director signed contracts on behalf of the company for work to be done on
    the leachate treatment system,
  • for five years, the former director held himself out to the MECP as the only person
    making decisions about leachate management on behalf of the company,
  • the former director made commitments to the MECP that the company would comply
    with the Order, and
  • the company’s environmental consultant took instructions from the former director.

The ERT concluded the former director had management and control.

Alizadeh affirms that the evidentiary burden to rebut the presumption of management and control is extremely high.

Financial Hardship
The ERT affirmed that financial hardship is not a reason to remove a director’s name from an Order. Three notices of assessment from the Canada Revenue Agency showing that the former director had limited income were insufficient to warrant removing the director from the Order.

The ERT rejected the director’s argument that the MECP should use financial assurance provided by the company to pay for the completion of the leachate treatment system. The ERT held that using the financial assurance for this purpose would mean there would be insufficient funds available to maintain the system in the future.

The ERT also noted that when the company had purchased the property, the vendor advanced funds to the company to be used to construct a leachate treatment system. Under the former director’s oversight, those funds were not used for this purpose.

Order Requirements
The ERT concluded that it is insufficient for a director to provide reasons for removal of their name from the Order without also addressing how the environmental objectives of the EPA will be met if the Order is revoked.

This articles has been republished with the permission of the author.  It was first published on the Willms & Shier website.


About the Author

With almost 40 distinguished years of experience practicing environmental law, Donna Shier is one of Canada’s leading environmental counsel to major industrial corporations. Donna is also frequently called upon by corporate, commercial and real estate lawyers to assist their clients with environmental legal issues, and provides environmental law expertise to external litigation counsel. Donna is a qualified mediator and is an accredited member of the ADR Institute of Canada. Donna is called to the bar of Ontario.

How new technology is improving first responder safety

Written by Steve Pike, Argon Electronics

When the pressure is on to make quick decisions in emergency response situations, the value of practical personal experience is something that can never be underestimated.

But while the “human factor” remains an inestimable force, it is also essential that first responders have access to the appropriate technological support to enable them to work safely and effectively in the field.

In the US, the Department of Homeland Security (DHS) Science and Technology Directorate (S&T) works in close collaboration with the nation’s emergency response community.

Their recent projects have included the development of body-worn cameras that activate without responder manipulation, thermal sensors for firefighters that provide early detection of infrared radiation (IR), and wearable smart chemical sensors that warn responders of toxic exposure.

The International Forum to Advance First Responder Innovation (IFAFRI) brings together global industry and academia to identify common capability gaps within first response – in particular the ability to rapidly identify hazardous agents, and to detect, monitor and analyse hazards in real time.

More recently, an exciting array of new technologies have been put to use within the emergency services sector – including an eCall vehicle alarm system that delivers automated messages to emergency services following an accident, the deployment of drones for search and rescue, and the development of artificial intelligence (AI) solutions for firefighters.

Advancements in radiation safety training

New innovations in simulator detector technology for radiation safety training are also playing an important role in supporting first response personnel.

Unlike other forms of hazardous materials where the threat may be clearly evident, ionising radiation is a formidable and invisible force.

So it is even more vital that first responders are equipped with the correct tools, that they are skilled in interpreting the readings they obtain and that they are confident to act on that information.

Enhanced simulator training systems

Incorporating the use of simulator detector equipment in radiation training exercises offers an opportunity to significantly enhance the quality of a trainee’s learning experience.

The effectiveness of the training, however, will depend on a number of key factors.

Firstly there is the realism of the simulator’s user interface components (the visual display, indicators, switch panel, vibrator, sounder etc) which should be designed to match as closely as possible the look, feel and functionality of the actual device.

As trainees approach or move away from the simulation source, the response speed and characteristics of the simulation will also be important in providing an accurate depiction of the behaviour of the actual detector.

Also key, is the extent to which trainees are able to experience the practical applications of inverse square law, time, distance and shielding. Different shielding effects will need to be realistically represented, for example, as will the effects of user body shielding for source location.

The consistency and repeatability of the simulation will be vital in ensuring that trainees are able to repeat the same scenario, in the same location, and receive the same result – and that the readings obtained on different types of simulator are within the accepted tolerances of the actual detectors.

From the trainer’s perspective, the whole life cost of ownership of the device will undoubtedly be an important consideration.

It may be important, for example, that the simulator uses only the same batteries as the original detector, that it requires no regular calibration and that there is no need for costly and time-consuming preventative maintenance.

The development of innovative simulator detector technologies, such as Argon’s RadEye SIM, offers the opportunity for first responders to enhance the timeliness, precision and effectiveness of their response to radiological emergencies.

For radiation safety instructors there is also the benefit of being able to create highly realistic and compelling radiation training exercises that are free from regulatory, environmental and health and safety concerns.


About the Author

Steven Pike is the Founder and Managing Director of Argon Electronics, a leader in the development and manufacture of Chemical, Biological, Radiological and Nuclear (CBRN) and hazardous material (HazMat) detector simulators. He is interested in liaising with CBRN professionals and detector manufacturers to develop training simulators as well as CBRN trainers and exercise planners to enhance their capability and improve the quality of CBRN and Hazmat training.